PRE ACTION PROTOCOLS
•Anecdotal evidence suggests that pre-action protocols are working well to promote settlement before issue and to reduce the number of ill founded claims.
•Early indications show that the introduction of Pre-Action protocols has been key in encouraging a new settlement culture. A survey of their members by the Association of Personal Injury Lawyers of their members showed that 48% of respondents felt that earlier settlement had been reached and 33% of cases avoided litigation.
LITIGATION WILL BE LESS ADVERSARIAL AND MORE CO-OPERATIVE
(Part 36, ADR and Single Joint Experts.)
•There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.
For ‘fast track’ cases, shown in Figure 6 the proportion of settlements or withdrawals before the hearing day has risen from 50% (July 1998-June 1999) to 70% (November 1999-December 2000). In addition, the proportion that was heard fell from 33% to 23%.
•Stuart Farr, a member of Martineau Johnson’s commercial litigation department said: “Lawyers are now being involved by clients earlier in an effort to avoid litigation”. •In a survey conducted for Lovells, a city law firm, 71% of respondents said they were now treating litigation as a last resort. •Fewer frivolous cases – John Taylor, a senior clerk at Old Square Chambers, Bristol notes: “We’ve noticed that the quality of PI [Personal Injury claims] has improved since Woolf as we’re now beginning to be used by more defendants”.
For ‘multi-track’ trials, in Figure 7 the change is less marked, with the settlement rate before the hearing day at 63% in July 1998-July 1999 and 72% in November 1999-December 2000.
•This view is endorsed in the anecdotal evidence. Andrew Horrocks, writing in The Times noted, “Our experience confirms that more cases are settling and faster, with fewer preliminary court applications”
•Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly. Although offers to settle can be made at any time during proceedings, there is a widespread belief that they are used in the early stages of a claim so that a trial may be avoided.
•In the CEDR Civil Justice Audit 74% of external lawyers (those not practising in a firm which dealt with its own litigation) felt that Part 36 made settling cases easier. •Freshfields also note that “….. the preliminary indications are that Part 36 offers are being made in practice on a regular basis (particularly by claimants).”
•Furthermore, Freshfields acknowledge that: “Evidence suggests that pre-action offers are being widely used by both potential claimants and potential defendants”
•This suggests that there is more conciliatory behaviour on the part of solicitors.
•David Marshall, treasurer of APIL and a partner at Anthony Gold Lerman and Muirhead commented: “[Part 36 offers] are a success story”
•Although in the same article Robin Knowles QC stressed the need for care saying: “…there is a difference between creating a climate where a disciplined and sensible approach by parties towards settlement is encouraged, and creating a climate which creates undue pressure to settle regardless of merits.”
•There has been a rise in the number of cases in which Alternative Dispute Resolution is used, suggesting that since the introduction of the Civil Procedure Rules, parties are more likely to try alternative
•Alternative Dispute resolution can be undertaken at any time once a dispute has arisen and the pre-action protocols encourage the use of ADR before a claim is issued. The introduction of the Civil Procedure Rules has raised the profile of ADR. Once a claim is issued, ADR is most likely to be encouraged by the courts at the allocation stage, case management conferences and pre-trial reviews. The court may of its own initiative stay the timetable to allow parties to try to settle the case by ADR or by other means. Although there appears to be a growing interest in ADR, there is a clear view that it should not be made compulsory. means of settling claims.
•Since the introduction of the Civil Procedure Rules, CEDR has recorded a 141% increase in the number of commercial mediations.
•Over 130 ADR orders were made in the Commercial Court between 26 April 1999 and June 2000 compared to 43 in the preceding 12 months.
•Gary Webber, a barrister at 33 Bedford Row described his experiences of mediation in the Solicitors’ Journal noting that: “ADR has been around a long time and recent surveys have shown that it is increasingly being used. However, it is still seen as trendy and people are not convinced that it works. It does. Try it.”
•Freshfields comments that: “…the take up for ADR remains relatively low in comparison with
SINGLE JOINT EXPERTS
•The use of single joint experts appears to have worked well. It is likely that their use has contributed to a less adversarial culture, earlier settlement and may have cut costs.
•In 2000 36% of trials involved expert witnesses, but only 22% involved expert witnesses instructed by one party, compared with 25% of trials where expert witnesses appeared in 1997 (all expert witnesses being assumed to have been instructed by one party pre CPR).the number cases proceeding through the courts”.
•Post CPR, joint expert witnesses were used in 41% of cases involving any expert witnesses, with only one case involving additional expert witnesses.
•Anecdotal evidence appears to confirm this trend, which has also been endorsed by the experts themselves. Judge William Rose, writing in the JSB Journal noted that: “the shifting of the expert’s duty from his client to the court cannot but save time and costs. “He further commented: “My discussions with experts lead me to believe that…the reforms are broadly welcomed”.
•District Judge Wyn Rees outlined the changes and the differences with the earlier system. “The acceptance of single joint experts, of written questions being put to experts and, where there are separate experts, imposing the requirement that experts discuss the issues arising from their reports and prepare schedules of the issues which they agree and those upon which they disagree with reasons for any disagreement, and the court’s permission being required to enable a party to use the written or oral evidence of an expert is leading to a great deal of expert evidence being agreed and that, in turn is also contributing to earlier settlement or resolution of claims. The change of culture that has taken place in relation to expert evidence may be appreciated when one recalls that at a meeting of expert witnesses…about two years before the Civil Justice Reforms were introduced, one expert recounted his experience of attending court to give evidence and not being shown the report of the expert instructed by the other party until the day of the trial. The Civil Justice Reforms have put an end to those experiences.”
•However, there is a note of caution from Freshfields, whose clientele may not be typical, as to whether the changes made to expert witnesses will indeed bring down costs. “Lord Woolf’s recommendation that single joint experts be used where possible was intended, at least in part, to save costs. In practice this may not happen as parties are likely to appoint their own experts to shadow the single joint expert”.
•In an article on ‘The Impact of the Woolf Reforms’ by M R Macnicol for the British Orthopaedic Association Newsletter, based on a questionnaire of their members, the author notes: “Several fellows have written in to confirm that the new Civil Procedure Rules are proving effective and the number of reports undertaken seems unaffected, half of the respondents reporting no change, one quarter an increase and one quarter a decrease. Despite a longer preparation time per report the provision of expert opinion continues much as before”.
•Participants in the CEDR focus group in their survey commented: “The employment of a single expert often leads to a prompt settlement.”
•Generally, the change to a single joint expert appears to have worked well. Although there may be some doubt about the cost if parties do appoint their own experts the single joint expert seems to lead to settlement and a less adversarial approach.
LITIGATION WILL BE LESS COMPLEX
(Civil Procedure Rules and case management.)
•The number of ways of commencing a case has been greatly reduced. The plethora of initial documents: Default Summons, Fixed Date Summons, Writ, Originating Application and Originating Summons are being done away with. In October 2001, when the new Civil Procedure Rules on Housing come into force, the many different ways of commencing a claim for possession will be replaced by a single form of claim.
•Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success.
•Lord Woolf also saw litigation being simplified by the introduction of case management by the court, with the court being able to strike out issues or whole claims where there is no real prospect of success and controlling discovery.
•There is some evidence to show that the courts are taking responsibility for case management and utilising the provisions for case management conferences. As Lord Woolf himself noted: “The conference is a significant opportunity to take important decisions about a case, including the possibility of settlement or referring the dispute to ADR, and to consider the costs so far and the estimate of the future costs. The client must be enabled to know what has happened and be involved in the decisions about the future of the action.”
•The data show a higher proportion of cases with case management hearings than with applications for directions or case progression, 60% in 2000 compared with 43% in 1997.
•As Philip Kabraji, head of forensic services at accountants Grant Thornton has commented: “Litigation is being speeded up. Because of case management conferences there is a lot of direction, a lot more than there used to be, and pleadings and expert reports and witness statements are more or less consecutive. There are no delays now whereas before there used to be a lapse of several months between pleadings and witness statements being issued.”
•However, there is criticism from the Lovells survey that courts may not monitor the progress of cases and chase up deadlines.
Professor Zander QC. in a Modern Law Review article he states,
•“Judicial case management] massively increases discretionary decision making by judges. This will mean a consequential massive increase also in inconsistent judicial decision.”
•Professor Zander expands on this theme in his 1999 Hamlyn Lectures :-
“The problem of inconsistency of approach by the judges creating unfairness applies equally to a whole raft of new discretions given to the judges by the new rules. Under Lord Woolf’s judicial case management, the judge who is managing the case knows only what is presented to him by the parties. He has to make snap decisions based often on inadequate information. Inevitably, through no fault of his, he will sometimes make decisions that are unwise or inappropriate. But it will be difficult to appeal such discretionary decisions since the appeal courts, understandably, will not want to second-guess the procedural judge ……So the move to judicial case management not only greatly increases the risk of inappropriate decisions resulting from the judge’s lack of familiarity with the case, but equally increases the volume of low-level, inconsistent discretionary decisions that are in practice unappealable. That again seems to me a step backward for fairness.”
THE TIMESCALE OF LITIGATION WILL BE SHORTER AND MORE CERTAIN
(The time between issue and hearing)
•The time between issue and hearing for those cases that go to trial has fallen. The time between issue and hearing for small claims has risen the introduction of the Civil Procedure Rules.
•Lord Woolf envisaged a system where cases would be conducted in a quicker time frame and the Fast Track was introduced with a 30 week time period from issue to trial. Lord Woolf also wanted litigants to know what events would take place during this time period and when they would occur. A key to reducing the timescale of litigation is case management in Fast and Multi-Tracks.
•Data from the Trial Sampler data shows that the average time from issue to trial was lower after the introduction of the new rules; 522 days in 2000 compared to over 600 days between 1994 and 1997 as shown in the table below. While it is not certain that this drop should be attributed to the Civil Procedure Rules, it is very likely. Furthermore, 44% of cases took less than 1 year to go from issue to trial in 2000 compared with an average of 30% across the whole period.
The greatest decrease in average time from issue to trial between 1997 and 2000 occurred amongst claims of £5000 or more.
•The average time of unspecified claims fell from 674 (which was close to the average between 1994-97) to 537 days, while that of claims £5000 or more fell from 744 to 450 days and there was a significant decrease in claims where the value was unspecified at issue.
•Anecdotal evidence on the setting of trial dates confirms these statistics. Lovells, in their survey found that litigation is now quicker with 66% of respondents saying that judges now set tighter timetables. Furthermore, “two-thirds “rubber-stamped” joint requests by the parties to move back dates in the time table, but this flexibility did not extend to trial dates”.
•His Honour Judge Holman, in his article for the JSB Journal writes: “There is the occasional case where the solicitors carry on at their own pace ignoring the timetable set by the court but this is rare and generally the approach of the profession has been excellent.”
THE COST OF LITIGATION WILL BE MORE AFFORDABLE, MORE PREDICTABLE, AND MORE PROPORTIONATE TO THE VALUE AND COMPLEXITY OF INDIVIDUAL CASES
•It is clear that the introduction of pre-action protocols has resulted in the front-loading of costs before proceedings are issued. However, with fewer cases being issued, overall costs may have decreased. Practitioners believe that there are benefits for their clients who can now make better assessments on whether they wish to pursue their claims or how they would like to deal with them.
•The situation on the cost of litigation is difficult to prove. The landscape of litigation after the introduction of the Civil Procedure Rules has not been stable enough to provide a definitive view. There is a danger that evaluating the effects of the reforms on costs too early will mean the result will be skewed as the longest running cases that were issued before the April 1999 will not have been completed. Furthermore, there is a wide range of practitioners and businesses which participate in civil litigation and gaining access to files is a difficult issue, particularly with regard to confidentiality.
•There are a number of views on the subject of costs. The principal criticism is that costs may have increased due to front-loading. However, this is balanced somewhat by the requirement to explain the likely costs before a case proceeds to trial.
•”There is less litigation than there used to be. The disadvantage [of Woolf] is that the costs are up front. People who want to bring a claim know there is a huge expenditure that has to be made up front, whereas previously they could stagger the costs. That puts people off bringing cases because they have to put their money where their mouth is.”
•”More activity early on means more analysis and advice, so more costs at the outset”.
•Ted Greeno, a partner at law firm Herbert Smith, claims companies face ‘more expensive litigation with less certain outcomes’.
•”The costs of preparing the documentation needed for the case management conference in particular can be high, and the time spent on case budgets and costs has not always delivered tangible benefits for the client (although it is likely to prove beneficial in the longer term).”
•”I readily accept however, that costs may often be incurred at an earlier stage rather than later stage, but it is the greater understanding that those early costs achieve (rather than the costs themselves) that can promote settlement.”
The Centre for Dispute Resolution Civil Justice Audit contains the results of a poll of lawyers. 38% of external lawyers (working for firms providing legal services) said that front-loading has had an effect on their willingness to issue proceedings and the focus group comments were generally positive.
•There has also been much discussion around summary assessments of costs. Writing in Legal Action, Suzanne Burn believes the summary assessment to be a ‘lottery’. Commentators are unsure as to whether the costs are fair and how difficult it is for judges to make an informed assessment.
•”Reaction to the implementation of the summary assessment provisions has been mixed, but they do appear to be discouraging peripheral applications and thereby contributing to more proportionate costs overall.”
PARTIES OF LIMITED FINANCIAL MEANS WILL BE ABLE TO CONDUCT LITIGATION ON A MORE EQUAL FOOTING
•The views of litigants in person are difficult to obtain as they tend to use the system only once. Whilst research is currently being undertaken to assess their views, anecdotally it appears that courts are providing the assistance require.
•Anecdotally there is some criticism that the system is more favourable to litigants in person than to those who have engaged professionals. However, as one article notes: “The legal professionals might complain if too much help is given to litigants in person but if the aims are to ensure access to justice and equality, then something has to give”.
•There is great difficulty in finding the views of litigants in person. They tend to only use the system once and in order to find those who have used the system a very large sample size must be used. Furthermore, they are unlikely to have used the system both before and after the introduction of the civil procedure rules.
•The experiences of litigants in person are an important part of the Access to Justice recommendations. Through repeating some of the earlier surveys done during “Paths to Justice” and seeking the views of those who use the courts, it should be clear whether Lord Woolf’s reforms have had a direct impact on litigants in person. This should extend to those who sought a different way of resolving their dispute. It appears anecdotally that courts are assisting litigants in person.
•With one or two exceptions the civil justice reforms have overall been well received.
•Wragge and Co, in their survey of Legal Heads of FTSE 1000 companies showed that 89% of respondents were in favour of the reforms. The majority of those surveyed welcomed earlier disclosure, greater co-operation and faster resolution of claims. The shift from the old culture to the culture that Lord Woolf envisaged of a more co-operative, less adversarial style of civil litigation was not regretted.
The Centre for Dispute Resolution conducted a MORI poll of practitioners. Shows there was an 80% level of satisfaction amongst respondents to their survey. Amongst the changes noted and welcomed were the reduction in litigation, speedier resolution and judicial case management.
•The view of practitioners and judges, with a few exceptions, is that the Civil Procedure Rules are working well. There are specific areas singled out for praise in the surveys, such as the change in culture from an adversarial climate to a more co-operative climate and a reduction in litigation.
•Although there is criticism from some quarters about litigation becoming slower and more costly, this is not felt by the majority of those who have expressed an opinion. Both judges and lawyers are in favour of the changes. Attempting to change many of the most significant features and the culture of the civil justice system is a huge task and it would be surprising if everything worked well from the start.